Comcast 1, FCC 0: what to look for in the inevitable rematch

With the FCC's sanctions against Comcast for P2P blocking struck down by a DC …

There is a venerable old proverb, often invoked in American politics. "Success has many fathers," the saying notes. "Failure is always an orphan."

Funny, but the opposite seems to be the case regarding Tuesday's court decision telling the Federal Communications Commission that it had no power to sanction Comcast for P2P throttling. Suddenly, this epic legal fail is surrounded by prospective parents, all fretting over the poor child and fighting about its future. That's because everyone knows that the foundling in question may have no legal garments today, but it's going to cry until it finds some, and plenty of self-appointed guardians are anxious to help it get a new wardrobe.

All by themselves

As we expected, the DC Circuit Court of Appeals told the FCC that there's no way, no how that various policy statements in Title I of the Communications Act gave the agency the authority to tell Comcast what it could or could not do about BitTorrent. You may enjoy reading prose in Title I like "[i]t is the policy of the United States... to promote the continued development of the Internet and other interactive computer services"—but you can forget about its statutory use. If the FCC wants to invoke some language as "ancillary" [contributing] to its enforcement needs, that text of the law has to give the Commission specific powers.

"Statements of policy, by themselves, do not create 'statutorily mandated responsibilities'," the court declared.

But it's important to note what the DC Circuit did not say. The justices did not opine that the FCC has no right to regulate ISPs. Indeed, during last year's oral arguments, Justice David Sentelle rebuked the agency's attorney when he suggested that Comcast's lawyer claimed that the FCC could not regulate the 'Net.

"I don't understand that to be her argument," Sentelle broke in. "Do either of my colleagues think that she is arguing that the FCC cannot regulate the Internet?" he asked the court in a distinctly rhetorical tone.

No surprise then that many of the expressions of praise for Tuesday's ruling had a nervous edge to them. "This decision from the Court of Appeals suggests that it is time to turn away from murky regulatory debates and focus on connecting all Americans and leading the world in broadband," declared CTIA-The Wireless Association's press release on the ruling.

But the FCC's Republican minority knows that the murk is just beginning to rise. "I hope this decision will provide certainty in the marketplace," wrote a worried-sounding Commissioner Robert M. McDowell in response to the news, "and will not lead to the unnecessary classification of broadband service as a monopoly phone service under Title II of the Act."

Ditto, declared his colleague Meredith Attwell Baker. "With regard to the substantive policy at issue in this case—net neutrality—I would oppose calls to use the court's decision as a pretext to reclassify broadband Internet access services under monopoly era Title II regulation."

Back to square II

Net neutrality backers have set their sights on Title II of the Communications Act, which declares it unlawful for common carriers "to make any unjust or unreasonable discrimination in charges, practices, classifications, regulations, facilities, or services for or in connection with like communication service." Back in 2002 the FCC turned away from this classification, defining cable modem ISP service as Title I "information" carriers rather than Title II "telecommunications" services. Now various public interest groups are clamoring for the FCC to reconsider that choice.

"Establishing limited Title II authority with restraint and forbearance over broadband Internet access will remedy the Agency's own now-discredited attempt to cobble together ancillary authority under Title I," urged the reform group Public Knowledge in response to the ruling. "That effort, undertaken by the previous Administration, was based on numerous incorrect legal, technological, and market assumptions. By contrast, Title II authority rests on sound factual and legal grounds, and will serve as a strong foundational basis for the FCC to protect access connections for consumers and small businesses."

Amen, declared FCC Democrat Michael Copps. "It is time that we stop doing the 'ancillary authority' dance and instead rely on the statute Congress gave us to stand on solid legal ground in safeguarding the benefits of the Internet for American consumers," he opined. "We should straighten this broadband classification mess out before the first day of summer."

So all eyes will now turn to the Commission's proceeding on this issue, which notes that its Open Internet proposals already sort of resemble Title II's "unjust or unreasonable" language. "We seek comment," the Notice of Proposed Rulemaking asks, "on whether an 'unjust or unreasonable discrimination' standard would be preferable to the approach we propose." Expect a lot of responses to that question in the near future.

An impressive guy

Meanwhile, Congress is watching this uproar, as are those who want Capitol Hill to get in on the action. It would be best, Center for Democracy and Technology Senior Policy Counsel David Sohn told us, for Congress to give the FCC "a clean but limited grant of authority to preserve the openness and neutrality of Americans' 'last mile' access to the Internet."

Mr. Open Internet himself, Representative Edward Markey (D-MA), also weighed in on the decision. But although Markey's statement mentioned his proposed net neutrality bill, we found his commentary somewhat circumspect.

"Today the Court threw out the previous Commission's shoddy legal theories," said Markey. "In light of the Court's ruling, I encourage the current Commission to take any actions necessary to ensure that consumers and competition are protected on the Internet."

In a similarly cautious vein, Rep. Henry Waxman (D-CA) announced that he was "working with the Commission, industry, and public interest groups to ensure that the Commission has appropriate legal authority to protect consumers."

Anyone might have second thoughts about punting this issue over to Congress, still utterly polarized after the passage of President Obama's health care bill. A taste of how a Congressional battle over the question might play out surfaced at last month's House Energy Commerce Committee hearing on the agency's National Broadband Plan. There, a lean and hungry-looking Mike Rogers (R-MI) confronted FCC Chair Julius Genachowski about his net neutrality proposals.

"Mr. Genachowski, you're a very impressive guy," Rogers sarcastically began. "I like a lot of what you're saying," mentioning an earlier FCC hearing statement. "Get tears in your eyes reading this thing. I want to stand up and salute the flag."

But as for net neutrality, Rogers continued, Netscape and Facebook "didn't happen because of this social justice notion we're going to have this exchange of information; we're going to be in the backyard playing Kumbaya with drums. It happened because somebody was going to make some money, right?"

It's still possible that Congress could have an enlightened and civil discussion about this matter. It's also possible that with mid-term elections approaching, net neutrality could become the next big "Armageddon" cause for one of the major parties (hint: the one not currently in power). And that's why the Open Internet debate might stay in the FCC's bailiwick for the foreseeable future, although even there the tone of the discussion could get a bit frothy.

The court's decision has drawn the FCC into an "existential crisis," warned the reform group Free Press, "leaving the agency unable to protect consumers in the broadband marketplace, and unable to implement the National Broadband Plan."

Comcast, of course, is happy about the ruling. "Our primary goal was always to clear our name and reputation," its press statement concluded. Safe to say that the cable giant has also cleared the decks for a new fight on this issue that could make the last one look like, well, Kumbaya.

Matthew Lasar / Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz.